Citation Nr: 21031429 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 21-00 424 DATE: May 21, 2021 ORDER As of September 17, 2018, a 60 percent rating, but no higher, for left upper extremity radial nerve paralysis is granted, subject to the laws and regulations governing the payment of monetary awards. FINDING OF FACT Resolving all doubt in favor of the Veteran, as of September 17, 2018, but no earlier, his left upper extremity resulted in complete paralysis of the radial nerve. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for left upper extremity radial nerve paralysis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.20, 4.124a, Diagnostic Code 8514. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1954 to March 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office. The Board observes that subsequent to the issuance of the March 2021 statement of the case, the Veteran submitted additional evidence for consideration in his appeal. 38 U.S.C. § 7105(e)(1). Further, as the Board's decision herein is entirely favorable, there is no prejudice to the Veteran in proceeding with a decision at the present time. Thus, the Board may properly consider the entirety of the evidence of record. Entitlement to a rating in excess of 40 percent for left arm radial nerve paralysis. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran is seeking an increased rating for the radial nerve paralysis affecting his upper left extremity, which is his "minor" or non-dominant upper extremity, given that the record reflects that the Veteran is right-hand dominant. The appeal period for the Veteran's increased rating claim begins on September 17, 2018. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the entire appeal period, the Veteran has been in receipt of a 40 percent rating for his left arm radial nerve paralysis, pursuant to DC 8514. See 38 C.F.R. § 4.124a. Diagnostic Code 8514 provides a 20 percent rating is warranted for mild and moderate incomplete paralysis of the radial nerve in the minor left extremity; a 40 percent rating is warranted for severe incomplete paralysis; and a 60 percent rating is warranted for complete paralysis of the radial nerve in the minor upper extremity. Id. The term "incomplete paralysis" as it relates to peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124, DCs 8510-8540. Per the rating criteria, when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The words "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Complete paralysis of the radial nerve is manifested by the drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling within the line of the outer border of the index finger; cannot extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist; supination of hand extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously; or total paralysis of the triceps, which occurs only as the greatest rarity. The Veteran underwent a VA examination in March 2021, at which he complained that he could not extend his left wrist, left fingers and had a slight tingling in the fingers. Muscle strength testing at the time revealed decreased left elbow extension rated at 4/5 and no muscle movement of the wrist, rated at 0/5. Additionally, there was decreased grip strength and pinch (thumb to index finger) strength, also rated 4/5. While reflexes of the left biceps were normal, that of the triceps was hypoactive. Finally, there was decreased sensation in the left inner/outer forearm and left hand/fingers. Overall, the examiner found that the Veteran had severe incomplete paralysis of the left radial nerve. Thereafter, in a June 2020 private treatment report, it was noted that the Veteran had strength rated as 5/5, good grip strength, and normal sensation in the palm, fingers, and dorsal hand. However, the Veteran had no active wrist extension, decreased elbow range of motion and decreased forearm rotation. Moreover, the Veteran was unable to actively extend thumb through the little fingers. Based on the foregoing, the Board finds that the Veteran is entitled to a 60 percent rating, but no higher, as of September 17, 2018, for his paralysis of the left radial nerve. In this regard, the Board observes that the Veteran has no active left wrist extension, decreased elbow extension and decreased grip strength upon examination in March 2021. Thus, while the March 2021 examiner characterized the severity of the Veteran's radial nerve as severe incomplete paralysis, the Board finds that such testing demonstrates that of complete paralysis. Moreover, the findings in the June 2020 private treatment record are consistent with those of the March 2021 VA examination. Notably, the June 2020 treatment provider also noted that the Veteran had no active wrist extension and was unable to actively extend the thumb through the little fingers. Therefore, resolving all doubt in favor of the Veteran, the Board finds that he is entitled to a 60 percent rating for his paralysis of the radial nerve of the left upper extremity. With regard to the assignment of the 60 percent rating, the Board notes that such rating is the maximum schedular rating available for his paralysis of the radial nerve of the left arm under 38 C.F.R. § 4.124a, DC 8514 and fully contemplates his symptomatology. The Board has further considered whether higher and/or separate ratings under any other potentially applicable diagnostic codes. However, the Board finds that the Veteran's symptoms are contemplated by the criteria for a 60 percent rating. Therefore, as he has been awarded the maximum schedular rating for paralysis of the radial nerve of the left upper extremity, there is no legal basis upon which to award a higher schedular rating. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Therefore, the Board resolves all doubt in favor of the Veteran and finds that a rating of 60 percent, but no higher, for service-connected paralysis of the radial nerve of the left upper extremity, as of September 17, 2018, is warranted. ROBERT N. SCARDUZIO Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.